Dog Bite Law in the Wake of 2015 Wisconsin Act 112

June 14, 2017

The old version of Wis. Stat. § 174.02(1)(b), which is commonly referred to as the “dog bite” statute, provided for doubled damages if the offending dog injured a person, a domestic animal, or other property and the owner had notice that the dog had previously caused one of these types of injury without provocation. The most recently amended version of Wis. Stat. § 174.02(1)(b) permits double damages in situations where a dog bites a person with sufficient force to break the skin and cause permanent physical scarring if the owner was on notice that the dog had previously bitten a person with sufficient force to break the skin and cause permanent physical scarring. This amendment constitutes a significant change in the substantive right to recover damages caused by a dog bite.

2015 WISCONSIN ACT 112

The old version of Wis. Stat. § 174.02 (l)(b), entitled “Owner’s liability for damage caused by dog,” provides:

(1) LIABILITY FOR INJURY.
. . .
(b) After notice. Subject to s. 895.045 and except as provided in s. 895.57 (4), the owner of a dog is liable for 2 times the full amount of damages caused by the dog biting a person with sufficient force to break the skin and cause permanent physical scarring or disfigurement if the owner was notified or knew that the dog had previously, without provocation, bitten a person with sufficient force to break the skin and cause permanent physical scarring or disfigurement.

This version was amended by 2015 Wis. Act 112 and the new version went into effect on November 13, 2015.

Currently Wis. Stat. § 174.02(1)(b) provides:

(1) LIABILITY FOR INJURY.
. . .
(b) After notice. Subject to s. 895.045 and except as provided in s. 895.57 (4), the owner of a dog is liable for 2 times the full amount of damages caused by the dog biting a person with sufficient force to break the skin and cause permanent physical scarring or disfigurement if the owner was notified or knew that the dog had previously, without provocation, bitten a person with sufficient force to break the skin and cause permanent physical scarring or disfigurement.

The amended version of the dog bite statute, regarding double damages, is effective on or after November 13, 2015. However, insurance companies are denying double damages for dog bite claims where the incident took place prior to November 13, 2015. Their denial theory is that the double damages amendments under the 2015 Wis. Act 112 fall into the statutory exception of retroactive application. The argument they make is that the amendments to the 2015 Act, were such to “correct” the statute and, as such, are remedial in nature.

We disagree with this reasoning; the intent of the law was to significantly restrict a substantive right to recover double damages in a specific range of situations. It was not intended to clarify or correct any defect in the law.

The general rule of statutory construction in Wisconsin is that statutes are to be construed as relating to future acts and not to acts that occurred prior to the adoption of the statute or any amendments thereto. In Snopek v. Lakeland Med. Ctr.1, the Supreme Court of Wisconsin discussed that a statute may be applied retroactively if: 1) by express language or by necessary implication, the statutory language reveals legislative intent that it apply retroactively; or 2) the statute is remedial or procedural rather than substantive. If a statute falls under the second exception, that it is remedial or procedural, it nonetheless cannot be applied retroactively if the legislature clearly expressed its intent that it be applied prospectively only or the retroactive application would impair contracts or vested rights.2

In Matthies v. Positive Safety Mfg. Co.3, the plaintiff employee was injured on the job and sued the defendant manufacturer of the machine. The employee sought a declaration that retroactive application of Wis. Stat. § 895.045(1) (1995-1996) was unconstitutional.The Wisconsin Supreme Court held that retroactive application of § 895.045 was unconstitutional.It found that the employee had a vested right in his claim for negligence on the date of his injury, and
because the injury occurred before the effective date of the amendment which changed the joint and several liability law, included in that claim was the right to recover under an unmodified doctrine of joint and several liability.The court further held that the employee’s right to recovery significantly outweighed the public interest served by retroactive application of § 895.045(1).He was entitled to a full recovery of his damages at the time he was injured from any defendant found causally negligent.Thus, there is a good argument to make that any retroactive application for the victims of negligence that bars them from recovery is unconstitutional, as their rights had vested at the time of the injury, prior to the statute being adopted or amended.

The Seventh Circuit, in Gibson v. Am. Cyanamid Co.9, discussed that the state high court tests the due-process constitutionality of the retroactive application of state statutes by asking, first, whether the statute is taking away a “vested right” of the challenger. If the answer is that no vested right is at stake, then the statute satisfies due process and the inquiry ends. If, however, the challenger is losing a vested right, then the second step of the inquiry asks whether retroactive application has a rational basis, which is discerned by balancing the public interest served by retroactive application against the private interest impacted by the statute.

The Court further stated that, a plaintiff’s interest in a common-law claim is a protected vested interest. An existing right of action which has accrued under the rules of the common law or in accordance with its principles is a vested property right.10

In State v. Chrysler Outboard Corp.11, Justice William A. Bablitch, writing for the dissent, noted that those justices writing for the majority acknowledged “the presumption that legislation applies prospectively only, unless express statutory language or necessary implication indicates an intended retroactive application.”12

Applying this rationale to the availability of double damages in dog bite claims wherein the injury occurred prior to the November 13, 2015 effective date of 2015 Wis. Act 112’s amendments, any retroactive application of the statute would be unconstitutional. The injured party had an existing right to double damages that had vested prior to the effective date of the Act.

We think the case law is quite clear that retroactive application of this amendment is not permitted. While we are not aware of any appellate cases considering the issue of retroactive application, we are aware that a highly regarded Dane County Circuit Court judge has concluded that the changes in the statute would not affect claims arising from bites that occurred before the statute’s effective date.


  1. 223 Wis. 2d 288, 294, 588, N.W.2d 19, 22 (1999).
  2. Id.
  3. 2001 WI 82, 244 Wis. 2d 720, 628 N.W.2d 842.
  4. Id. at ¶¶1-2.
  5. Id. at ¶2.
  6. Id. at ¶¶21-22.
  7. Id. at ¶47.
  8. Id.
  9. 760 F.3d 600, 604-05 (7th Cir. 2014).
  10. Id.
  11. 219 Wis. 2d 130, 580 N.W.2d 203 (1998).
  12. Id. at n. 31 (citing, Employers Ins. of Wausau v. Smith, 154 Wis. 2d 199, 223-24, 453 N.W.2d 856 (1990) (“The strong common-law tradition is that the legislature’s primary function is to declare law to regulate future behavior. As a matter of justice, laws should not be enforced before people can learn of the law and conduct themselves accordingly, and retroactivity disturbs the stability of past transactions.”).).

 

This article, slightly modified to note recent updates, was featured in the Spring 2017 issue of The Verdict, which is published by the Wisconsin Association for Justice. Reproduced here with the permission of the Wisconsin Association of Justice.

For more information about "Dog Bite Law in the Wake of 2015 Wisconsin Act 112," contact Gail C. Groy at ggroy@axley.com or 608.260.2485.